Tim Wu and Wireless Net Neutrality Regulation

How does Columbia Law Professor Tim Wu justify his proposal to impose massive new regulation on cellphone networks? His forthcoming paper, “Wireless Net Neutrality,” which Jerry discusses here, proposes regulating cellphone networks like common carriers:

(1) Allow any consumer to attach any safe device to their cellphone, and
(2) use the applications of their choice and view the content of their choice.
(3) Require cellphone providers to disclose, fully, prominently, and in plain English, the following information: * Limits on bandwidth usage; * Devices that are locked to a single network; and * Important limitations placed on features; and
(4) reevaluate their “walled garden” approach to application development, and work together to create clear and unified standards to which developers can work.

“Oligopoly”

Wu acknowledges critics will point to vibrant competition in the cellphone industry as the main reason we don’t need this. Although most people don’t, Wu completely dismisses the extreme competitiveness of the industry. According to him, it’s a “textbook oligopoly with four major players, premised on a bottleneck resource.”

Well, in an oligopoly prices could be expected to rise, service deterioriate and innovation suffer. But this is precisely the opposite of what we see in the cellphone space. Cellphones used to be a luxury item, now they’re ubiquitous. The FCC noted that during the five-year period ending in June 2002, the number of cellphone subscribers increased from 48.7 million to 134.6 million. This is a result of falling prices, improved coverage and the introduction of new features. None of this would have happened if the market were broken.

Wu’s oligopoly argument rests on two faulty premises:

Scarcity

According to Wu,

… it is often said that the wireless mobile market is “highly competitive.[sic]” as though starting a competitive cell phone company were as easy to start as a hot dog stand …. Structurally, the mobile wireless industry has a natural and major barrier to entry–acquisition of sufficient spectrum … The oldest fact in broadcast, spectrum scarcity, in [sic] a physical fact that cannot help but affect the conditions of competition in the wireless world.

At the outset, it’s worth noting that Wi-Fi and WiMAX are creating an enormous new competitive threat to the cellphone providers, and that technology companies, the FCC and local governments are helping reduce the cost of deploying these systems.

Setting that aside, it has always been thought that spectrum is a scarce resource although history has shown it’s abundant. For example, when ways needed to be found to make more efficient use of mobile wireless spectrum so the service would be more appealing to mainstream consumers, the market responded. A company in San Diego invented CDMA (code division multiple access), which was twenty times more efficient than the cellular technology it displaced. Spectrum may be a finite resource, but we are constantly discovering better ways to exploit it.

There is widespread belief that radio spectrum use in the US is either crowded or becoming very crowded : the shortage of spectrum is often a spectrum access problem. That is, the spectrum resource is available, but its use is compartmented by traditional policies based on traditional technologies. New radio technologies may enable new techniques for access of spectrum and sharing of the spectrum resources that may create quantum increases in achievable utilization.

Consumer ignorance

Wu also seems to claim that ordinary people are simple people who don’t always understand what’s good for them:

It is relatively easy for consumers to compare firms by metrics like price and network coverage. But taking the time to do comparisons on the basis of whether the carrier cripples technological feature sets is something only a select group of consumers have the time or expertise for.

Somehow I’m sure when Wu’s “select group” detects instances of carriers crippling technology that it’s members will know what to do. It’s easy to publish one’s views on the Internet. If consumers care, they will respond. But it could also be that the value of a particular innovation is in the eye of the beholder. Maybe the fear here is that consumers won’t care about a particular innovation, or that they may value other things, like price, convenience, reliability, etc., higher.
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Hance Haney / Hance Haney is Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute. Haney spent ten years as an aide to former Senator Bob Packwood (R-OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a BA in history from Willamette University and a JD from Lewis and Clark Law School in Portland, Oregon.